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Queen's University
 

Multiculturalism Policies in Contemporary Democracies


New Zealand

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TOTAL SCORES
Year: 1980 2000 2010
Score: 6 7 7.5


1. Recognition of land rights/title

   Yes.

SCORES
Year: 1980 2000 2010
Score: 0.5 1 1

Evidence:

  • Under the 1840 Treaty of Waitangi (Article 2), the Maori are guaranteed “the full exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.”
  • Maori land can only be alienated to the British Crown. The treaty affords the Crown with “the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate.”
  • Legislation in 1993 created what are called Maori reservations. Under the Te Ture Whenua Maori Act 1993 (also called the Maori Land Act 1993), any Maori freehold land or any general land may be set aside as a Maori reservation. As well, Crown land with historical, spiritual, or emotional significance to the Maori can also be set aside with this designation.
  • Under the Te Ture Whenua Maori Act 1993, a reservation can be established for any of the following purposes: a village site; sports grounds; a catchment area or other source of water supply; a place of cultural, historical, or scenic interest; a timber reserve, among others.
  • Maori reservations are distinct from Maori reserves which are administered by the New Zealand government under the Maori Reserved Land Act 1955. Under this legislation, the Maori were granted land freeholds to tracts of land set aside by the Crown and leased to the owner (which need not be Maori) in perpetuity.
  • With the enactment of the Treaty of Waitangi Act 1975, a Maori Land Court was established, though this body had been in existence since 1862 as the Native Land Court under the jurisdiction of the Native Land Act.
  • The Native Land Court was established largely to confiscate Maori lands (Gilling 1993). However the newer Maori Land Court, with powers limited to those of a tribunal, conducts hearings concerning Maori land claims, as well as successions, title improvement, and Maori land sales.


2. Recognition of self-government rights

   Partial, but limited to community bylaws.

SCORES
Year: 1980 2000 2010
Score: 0.5 0.5 0.5

Evidence:

  • The Maori Social and Economic Advancement Act passed in 1945 conferred a limited measure of self-government upon organized Maori communities. This act was consolidated and amended with the enactment of the Maori Community Development Act 1962.
  • The Maori Community Development Act 1962 recognizes established Maori District Committees and District Maori Councils. The 1962 legislation groups local community committees into districts and then combines these districts so as to allow for the creation of a New Zealand Maori Council at the national level.
  • Under this legislation, Maori District Committees are given authority to exercise Maori customary law by way of bylaws in Maori communities.
  • The act, however, is administered by the New Zealand Minister of Maori Affairs under his or her general direction and control.
  • Maori interpretations of the Treaty of Waitangi maintain that Maori autonomy is a requirement of the Crown in its obligation to treaty duties. Although the English version of the text grants the Crown sovereignty, the Maori text limits the Crown’s rights of government short of sovereignty. Nevertheless, Maori claims to self-government are far from settled (Wiessner 1999).



3. Upholding historic treaties and/or signing new treaties

   Yes.

SCORES
Year: 1980 2000 2010
Score: 1 1 1

Evidence:

  • Signed on 6 February 1840, the Treaty of Waitangi is a founding document of government in New Zealand, and established the country as a nation. According to the English text, the Maori ceded the sovereignty of New Zealand to Britain and gave the Crown an exclusive right to buy lands they wished to sell. In return, the Maori were guaranteed full rights of ownership of their lands, forests, fisheries and other possessions, and were given the rights and privileges of British subjects (NZ 2010).
  • In a submission to the United Nations, the Government of New Zealand made it clear that, “The Treaty of Waitangi continues to be the founding document for the ongoing and evolving relationship between Maori and the Crown” (UN 2006a, 13).
  • The Treaty of Waitangi has never been ratified, however it is commonly held to be the founding document of New Zealand and the source of political legitimacy for current state institutions. The principles of the treaty have been given statutory force in legislation, and it is argued that the treaty is part of the “unwritten” constitution of New Zealand (Pryor 2008, 86).
  • The Office of Treaty Settlements, under the Ministry of Justice, was established and continues in operation to negotiate the settlement of historical Treaty of Waitangi claims and build positive relationships between the Crown and Maori. The Government of New Zealand has stated an objective of having all claims settled by 2020 (UN 2006a, 15).


4. Recognition of cultural rights (language, hunting/fishing, religion)

   Yes.

SCORES
Year: 1980 2000 2010
Score: 1 1 1

Evidence:

  • The Maori language was confirmed and guaranteed by the Crown in the Treaty of Waitangi. The Maori Language Act of 1987 declared the Maori language to be an official language of New Zealand. The act confers upon the Maori the right to speak Maori in legal proceedings, however the right does not entitle any person to insist on being addressed or answered in Maori.
  • With the enactment of the Maori Language Act, the government of New Zealand established the Maori Language Commission. The main function of the commission is to “promote the Maori language, and, in particular, its use as a living language and as an ordinary means of communication.”
  • In 2003, the commission initiated the Maori Language Strategy. The strategy aims to move the Maori language to the next stage of revitalization over the next twenty-five years. The strategy has received confirmation and direction from the New Zealand Cabinet.
  • The strategy states: “By 2028, the Maori language will be widely spoken by Maori. In particular, the Maori language will be in common use within Maori whanau, homes and communities. All New Zealanders will appreciate the value of the Maori language to New Zealand society” (MLC 2003, 5).
  • In its annual report for 2009, the Maori Language Commission notes that the strategy will continue to set the direction of the ultimate goal of New Zealand as a bilingual nation (MLC 2009, 5).
  • Maori are entitled to both commercial and non-commercial fishing rights in New Zealand in both legislation and under the common law doctrine of Aboriginal rights. Moreover, the orthodox position is that the Treaty of Waitangi guarantees, under Article 2, protection of Maori fisheries where Aboriginal title has not been clearly extinguished (Maihi 2003, 18).
  • The doctrine of Aboriginal rights entitle the Maori to a range of hunting, fishing and other types of food gathering (classed as being similar in nature to rights to take and rights of access and passage). In Te Weehi v. Regional Fisheries Officer [1986], Maori fishing rights were affirmed and deemed protected under the doctrine of Aboriginal rights.
  • Among the first statutes to explicitly confer Maori fishing rights was the Fisheries Act 1983. This legislation stated that, “nothing in this Act shall affect any Maori fishing right.” However, this legislation has been repealed, yet the obligations it contained form part of the new statutory base through which Maori fisheries rights are now conferred, namely: Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; the Fisheries Act 1996; Maori Fisheries Act 2004; and the Maori Commercial Aquaculture Claims Settlement Act 2004 (NZ 2009).
  • The Government of New Zealand, acting on behalf of the Crown, has developed the Fisheries Treaty Strategy. In partnership with the Maori, the treaty strategy is designed to ensure the Crown meets its obligation to Maori under treaty principles, legislative obligations in the area of fisheries and aquaculture.


5. Recognition of customary law

   Yes.

SCORES
Year: 1980 2000 2010
Score: 1 1 1

Evidence:

  • In New Zealand, Maori custom law is a source of treaty law, with the Treaty of Waitangi promising the protection of Maori custom and cultural values. Maori customary law is relevant in several areas such as sentencing, family protection claims, in the protection and utilization of natural resource, as well as the administration of land.
  • New Zealand subscribes to the common law “doctrine of aboriginal rights” which is based on the presumption of continuity, namely that customs, particularly long-standing and universally observed customs of a particular community or in relation to a particular piece of land, are granted the force of law under English domestic law and may be enforced in accordance with the remedies available at law and in equity (NZLC 2001, 11).
  • The New Zealand Law Commission points out that, in recent times, judges are increasingly being required to develop an understanding of Maori cultural values and practices and how they apply to particular situations (NZLC 2001, 49).
  • The Treaty of Waitangi Act of 1975 established the Waitangi Tribunal, which is charged with making recommendations on claims relating to the practical application of the principles of the Treaty of Waitangi. Moreover, the Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi. The recommendations of the Tribunal are not, however, binding upon the Crown.


6. Guarantees of representation/consultation in the central government

   Yes, both representation and consultation.

SCORES
Year: 1980 2000 2010
Score: 1 1 1

Evidence:

  • According to the New Zealand Ministry of Justice, the Treaty of Waitangi provides a set of reasons to consult with Maori, namely the principle that the Treaty stipulates a constructive and mutually respectful relationship between the Crown and Maori. “The Treaty of Waitangi, as the founding document of New Zealand, was the first step in bringing together two parties with distinct backgrounds and cultures. Consultation is a way of ensuring that Maori are given the opportunity to provide their views during the development of justice policy” (NZ 1997).
  • Moreover, the courts and various jurisprudence have developed guidelines that entail: the relationship should be built on mutual cooperation and trust, there are basic principles of reasonableness and good faith, and the Crown has to make informed decisions (ibid.).
  • The Government of New Zealand has moved toward direct reference of the Treaty of Waitangi in legislation, moving away from general references to a clear articulation of the responsibilities of government or local government to provide for consultation with Maori or Maori participation in decision-making in relation to specific activities (UN 2006a, 13).
  • The Government of New Zealand established a department devoted solely to Maori, the Ministry for Maori Development, with an act of parliament in 1992. The department monitors policy and legislation, providing the government with advice on Maori relations. The department has developed the “Maori Potential Approach,” a policy framework designed with the ultimate aim to better position Maori to build and leverage their collective resources, knowledge, skills and leadership capability (NZ 2008).
  • New Zealand’s electoral system includes what are known as Maori electorates that guarantee Maori representation in the New Zealand Parliament. Separate electoral seats in Parliament are reserved to represent those New Zealand electors choosing to register on a separate Maori election roll.
  • Despite being reserved for Maori representation, the Maori seats do not guarantee that the representative will be of Maori descent. Since 1967, the stipulation that the representative be a non-European ended. However, there has yet to be a non-Maori elected in a Maori electorate seat, although non-Maori candidates have contested these seats since 1967 (Wilson 2003, 19).
  • Under the new electoral rules that accompanied the introduction of Mixed-Member Proportional representation in 1993, the number of Maori electorates is allowed to fluctuate. Though previously fixed, the number of Maori seats must represent an average electoral population of 68,150 Maori. As of 2008, the last general election in New Zealand, there are seven dedicated seats in Parliament for the Maori electorates.


7. Constitutional or legislative affirmation of the distinct status of indigenous peoples

   Yes.

SCORES
Year: 1980 2000 2010
Score: 1 1 1

Evidence:

  • The privileged status of the Treaty of Waitangi is an affirmation of the distinct status of Maori.
  • The 1980s was characterized by the formal recognition of indigenous rights, accompanying a re-interpretation of Maori rights as constituting a treaty-based partnership between the Crown and the Maori people (Ivison, Patton and Sanders 2000, 141).
  • With the passage of the Treaty of Waitangi Act 1975, Maori tribal groups were effectively recognized as indigenous peoples, having existed prior to the 1840 signing of the Treaty of Waitangi (ibid.).


8. Support/ratification for international instruments on indigenous rights

   Partial.

SCORES
Year: 1980 2000 2010
Score: 0 0 0.5

Evidence:

  • New Zealand has not ratified ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989.
  • New Zealand was among the four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP). In April 2010, New Zealand reversed its position and endorsed the UN DRIP. This declaration is non-binding and does not impose duties or obligations on the New Zealand government or Crown.


9. Affirmative action

   Partial, but very limited.

SCORES
Year: 1980 2000 2010
Score: 0 0.5 0.5

Evidence:

  • There is no statutory or legislative base for affirmative action in New Zealand. However, positive discrimination is encouraged in certain areas of public concern through legislation as well as policy.
  • In 1980, the Government of New Zealand introduced the Maori and Pacific Islander Recruitment Scheme to increase the participation of Maori in the public sector. Later, in 1987, the New Zealand Race Relations Conciliator proposed that the government implement a comprehensive system of affirmative action. The government responded with the State Sectors Act in 1988 (Lashley 2006, 138).
  • In the State Sectors Act of 1988, the New Zealand public service legislation, the chief of a Department should strive to be a “good employer.” As per section 56.1 (c), this entails recognition of: (i) the aims and aspirations of the Maori people; and (ii) the employment requirements of the Maori people; and (iii) the need for greater involvement of the Maori people in the Public Service.
  • Affirmative action for Maori is a matter of policy regarding medical and law studies admissions. For medical and law schools, Maori (as well as Pacific Islanders) can enter through targeted “Special Entry Quotas.” Universities are empowered by the Education Act 1989, which affords them the authority to sanction discriminatory decisions relating to affirmative action programs.

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